United States v. Joaquin

114 F. App'x 349

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 3, 2004
• Docket: No. 04-10258; D.C. No. CR-03-01001-PGR
• Status: Published

Opinion

MEMORANDUM

**

Arlene Joaquin appeals the 18-month sentence imposed following her guilty plea to transporting illegal aliens in violation of 8 U.S.C. § 1324(a)(1). Joaquin’s waiver, in her plea agreement, of her right to appeal her sentence was superseded by the district court’s advice, at sentencing, that she had the right to appeal. See United States v. Buchanan, 59 F.3d 914, 917-18 (9th Cir.1995). Joaquin contends that the district court plainly erred in making an upward adjustment under U.S.S.G. § 2Ll.l(b)(5) for creating a substantial risk of serious bodily harm, and that the district judge’s application of this sentencing enhancement, without proof to a jury beyond a reasonable doubt or an admission by Joaquin, violated her Sixth Amendment rights under Blakely v. Washington, — U.S.-, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and United States v. Ameline, 376 F.3d 967 (9th Cir.2004).

Because the portion of Joaquin’s sentence that is clearly unaffected by Blakely and Ameline has expired or will expire shortly, we remand the case to the district court for whatever action it determines to be proper under the circumstances. See United States v. Castro, 382 F.3d 927, 928 (9th Cir.2004) (per curiam). Among the options available to the district court, within the exercise of its discretion, would be to reconsider its sentence or to stay further proceedings pending the outcome of United States v. Booker, 375 F.3d 508 (7th Cir.), cert. granted, — U.S. -, 125 S.Ct. 11, 159 L.Ed.2d 838 (2004), and United States v. Fanfan, 2004 WL 1723114 (D.Me. June 28, 2004), cert. granted, - U.S. -, 125 S.Ct. 12, 159 L.Ed.2d 838 (2004), with or without granting bail to Joaquin. See Castro, 382 F.3d at 928.

REMANDED.

The mandate shall issue forthwith.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.